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HomeMy WebLinkAboutTURTLE HILL B �,►o4'NORTyr 40-q � b APRILM : �,: 9 xt`�•gCHU'-'�'��� • TVT TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS February 14, 1957 The Board of Appeals held a Public Hearing on Monday evening, January 28, 1957 on the application of Massachusetts Institute of Technology, requesting a variance of the Zoning Bylaws so as to permit the erection of a certain radar towers for research and experimental purposes, to a height in excess of that permitted by Section 8 of said Zoning By-Laws entitled aBuilding Heights Permitted" on the premi- ses located at Boston Hill, North Andover. This Public Hearing was advertised in the Evening Tribune on January 16, 1957, and the abbuttors duly notified. Members present and voting on this application were: Ralph Finck, Chairman, Henry Lund, Alfred Boeglin, Nicholas Nicetta, and Associate Member, Daniel OtLeary who was designated by the Chairman to sit in place of Mr. Terroux who was absent on this Hearing. After considering this matter, it was agreed to grant the variance. The Board voted unanimously on this decision. On the same date as above, the Board of Appeals het a Public Hearing on the application of Daniel O'Lenio requestion a variance of the Zoning By-Law so as to permit the erec- tion of a restaurant under Section 4.44 of the Zoning By-Law, on the premises located at Osgood Street, North Andover. This Public Hearing was advertised in the Evening-Tribune on January 16, 1957, and the abbuttors were duly notified. Members present and voting on this application were: Ralph E. Finck, Chairman, Alfred Boeglin, Secretary, Nicholas Nicetta, Kenneth Terroux and Associate Member, Daniel O'Leary, who was designated to sit in the absence of Henry Lunda After considering this matter, it was unanimously agreed to grant the variance. Also on the same date mentioned above, the Board held a Public Hearing on the applica- tion of Joseph L. Licciardello, requestion a variance of the Zoning By-Law so as to permit the erection of a single-family dwelling on the premises located at Lot 104 Harwood Street, North Andover. t t--: AmIOTV •� 4: 1855 •..... gCNU9�s ►rw ' TOWN OF NORTH ANDOVER MASSACHUSETTS BOARD OF APPEALS 2. This Public Hearing was advertised in the Evening Tribune on January 16, 1959, and the abbuttors were duly notified. Members voting on this application weret Ralph Finck, Chairman, Alfred Boeglin, Secretary, Nicholas Nicetta, Kenneth Terroux, and Associate Member, Daniel O'Leary, who was designated to sit in the absence of Member Henry Lund. After considering this matter, it was unanimously voted to grant the variance. Also, a renewal was granted to David Rennie, 200 Chickering Road, North Andover, for the continued operation and maintenance of a road-side stand for the sale of fruit and vegetables which are raised on the premises. This permit must be renewed yearly. Also, a renewal was also granted to the Sheltering Arms Nursing Home. Sincerely, BOARD OF APFULS OF NORTH ANDOVER Ralph E. Finck, Chairman Alfred Boeglin, Secretary Henry Lund Nicholas Nicetta Kenneth Terroux Daniel O*Leary, Associate Member TOWN OF NORTH ANDOVER ' MASSACHUSETTS AUG$.2 19T$ w �•, isaa J"4 Evan 4 August 23, 1976 John J. Lyons, Town Clerk Town Office Building North Andover, Ma. Dear Mr. Lyons: The following petition was heard at a meeting of the Planning Board on Monday evening, August 2, 1976 at 7:30 P.M. in the Town Office Meeting Room. The following members were present and voting: Fritz Ostherr, Chairman; William Chepulis, Vice—Chairman; John J. Monteiro, Clerk; Paul R. Lamprey; and William N. Salemme. Frack C. Gelinas, representing Landsail, Inc., and Mr. John C. Tuttle petitioned for a subdivision of a parcel of land containing approximately 9 acres, situated off Salem St., subdivided into 8 lots and to be known as "Turtle Hill". Mr. Gelinas presented plans to the Board and pointed out the drainage swales and contours of the land. He explained, further, that there would be a 600 foot cul de sac of 26 foot width. There is no Town sewerage in the area and showed two portions of the site that are wet. Opposition was expressed by Richard Callen, 1580 Salem St.; Steven Vounessa, 1620 Salem St.; Barbara Adams, 1630 Salem St.; Edward Tonello, 1592 Salem St.; and Mr. Frazier, 1631 Salem St. All residents and abutters were concerned about the drain— age and wet conditions of the area. Robert Maurer, owner of the land, spoke in favor of the petition. At a meeting held on August 16, 1976, the Subdivision Control Subcommittee made and seconded a motion to APPROVE the subdivision subject to the conditions listed below. The vote on the motion was unanimous. The conditions are as follows: 1. That the record owners of the subject land forthwith execute and record a "covenant"running with the land", or otherwise provide security for the construction of ways and the installation of municipal services within said subdivision, all as provided by G.L. c. 41, S. 81—U. 2. That all such construction and installations shall in all respects conform to the governing rules and regulations of this Board. Turtle dill — cont. 3. That all water mains shall be installed in accordance with the Board of Public Works specifications. 4. That all fire protection improvements shall be constructed in accordance with the standards of the Board of Fire Engineers. 5. That roadway and surface drainage shall be constructed in accordance with the standards of the highway Surveyor. 6. That the drainage course shall run inside the trees and across the Vounessa property via an easement from Vounessa to the developer. 7. That during the construction phase, the developer shall be responsible for down stream drainage. 8. That no lot may be built upon until a subsurface sewage disposal system permit is granted by the Board of Health. Very truly yours, �. KAM= BOARDU � v� 7976 'a 0 JOW I LYQHS v stn TQ,y1(� rLE/�1( t` . Fritz Ostherr, nura� o`� Chairman gb r, y A Notice to APPLICANT/TOWN CLM and Certification of Action of Planning Board on Definitive Subdivision Plan entitled: rffnM.r TiTT.T. By: FRANK Co GELINAS & ASSOC. dated June 2 � lq .76 The North Andover Planning Board has voted to APPROVE- said plan, subject to the following conditions: 1. That the record owners of the subject land forthwith execute and record a "covenant running with the land"T or otherwise provide security for the con- struction of ways and the installation of municipal services within said sub- division, all as provided by G.L. c. 41, S. 81-U. 2. That all such construction and installations shall in all respects conform to the governing rules and regulations of this Board. 3. That, as required by the North Andover Board of Health in its report to this Board, no building or other structure shall be built or placed upon Lots No. as shown on said Plan without the prior consent of said Board of Health. 4. Other conditions: all water mains shall be installed in accordance with the Board of Public Works specifications. 5. That all fire protection improvements shall be constructed in accordance with the standards of the Board of Fire Engineers. 6. That roadway and surface drainage shall be constructed in accordance with the standards of the Highway Surveyor, 7. That the drainage course shall run inside the trees and across the Vounessa property via an easement from Vounessa to the developer. 8. That during the construction phase, the developer shall be responsible for down stream drainage. 9. That no lot may be built upon until a subsurface sewage disposal system permit is granted by the Board of Health. In the event that no appeal shall have been taken from said approval within twenty days from this date, the North Andover Planning Board will forthwith thereafter endorse its formal approval upon said plan. irstv r� NORTH ANDOVER PLANNING BOARD Date: August 20, 1976 By; Fritz Ostherr, Chairman s. y FM C APPLICATION FOR APPROVAL OF DEFINITIVE PLAN -mss- s 19 *&. To the Planning Board of the Town of North Andover: The undersignedt being the applicant as defined under Chapter 419 Section 81-3., for approval of a proposed subdivision shown on a plan entitled D""Ltiw att�iv sive I►Le .! t�..� t r;;tA,,; +.--- �-...ess. by P11wk Ce Gq11waa a Ataociatam dated .Joe 3STA _ being land bounded as follows: Marto riS WIN Do f,." . 4"664o__l Ww.twurly by 1=4 XM of D&%W1 iwwtsrly by low ja Qi' _Cs1Lj2s X11®q YoMtfegsa Aw"lawss a sal00 of mass, hereby submits s plan as a DEFINITIVEplan in accordance with the Rules and Regulations of the North Andover Planning Board and makes application to the Board for approval of said plan. Title Reference: North Essex Deeds, Book &alL, Page _AA.; or Certificate of Title No. , Registration Book.9 Pap.*f or Other: MM Plan M 60" Saidplan_haa(�[) has not( ) evolved from a preliminary plan submitted to the Board of 1 19 76 andapproved (with modifications) (Z disapproved ( on , 19 7i . The undersigned hereby applies for the approval of said DEFINITIVE plan by the Board, and in furtherance thereof hereby agrees to abide by the Boardle Rules and Regulations. The undersigned hereby further covenants and agrees with the Town of North Andover, upon approval of said DEFINITIVE plan by the Board: 1. To install utilities in accordance with the rules and regulations of the Planning Board, the Public Works Department, the Highway Surveyor, the Board of Health, and all general as well as zoning by-laws of said Town, as are applicable to the installation of utilities within the limits of ways and streets; 2. To complete and construct the streets or ways and other improvements shown thereon in accordance with Sections Iv and V of the Rules and Regulations of the Planning Board and the approved DEFINITIVE plan, profiles and cross sections of the same. Said plant, profiles, cross sections and construction specifications are specifically, by reference, incorporated herein and made a part of this application. This application and the covenants and agree- ments herein shall,be binding upon all heirs, emecutors, administrators, successors, grantees of the whole or part of said land, and assigns of the undersigned; and 3• To complete t installations and construction witjjin two (2) years from c'0'� Received by C� y� Dates JUN 82 076 Pignature of Applicant Times BHN 1 LYONS !s2 COMMGMA"lth Avwawe lsstsa, Masse suite N Signature: �' � 'Aie1 � :' Address d TOWN CLERK NO. ANDOVER. MASS. 1 1 it THE ZONING ENABLING ACT 1� C H A P T E R 4 0 A G E N E R A L L A W S 1 334 BOYLSTON STREET BOSTON ABSBST 1904 ,.1 a t RICHARD PRESTON COMMISSIONER COPLEY 7-5600 July 1954 Legislation enacted during the 1954 session of the General ' Court of the Commonwealth of Massachusetts has revised the zoning cnabling provision of the state. Sect cns 27-30B of Chapter 40 have been eliminated and re ' pla��a by m new chapter designated as Chapter 40A, The Zoning; F&i a'blj_ng Act. While the new chapter is mainly a rearrangement and re- codification of Sections 25-30B, six d-fi.11to arrd important features or provisions have bae:a aded. A discussion of these six features is also included in this publication. Chapter 40A was enacted as Chapters 368 and 551 of the Acts of 19542 both of which will becomes effoctive ninety days after enactment of Chapter 368 or Angust 1, 1954. No exist- ing zoning ordinance or bylaw will be affected by this new "Zoning EnablIng Act". However, two new items of procedure will be required of Boards of Appeals. Lists of procedural steps for adoption%and amendment of zon- ing by-laws by towns are appended. The Division of Planning of the Massachusetts Department of ' Commerce has prepared this annotation of "The Zoning Enabling Act" as revised and enacted for the use of Planning Boards, Boards of Appeal, municipal officials and others interested ' in planning and zoning. Richard Preston Commissioner I � ' CONTENTS Foreword page ' Chapter 368 of the Acts of 1954 ----------------------------- 1 Chapter 551 of the Acts of 1954 ------..-----___- ' Chapter 40A General Laws ' Section 1. Citation--------------------- --=--- 2 Section 2. Purpose of Zoning--------------------- 2 Section 3. Purposes of Regulations----------------- 3 ' Section 4. Exceptions----------------------------- 3 Section 5. Non-conforming Uses---------------- 3 Section 6. Adoption and Amendment--------------- 4 Section 7. Two-thirds vote for Amendment-------- 4 Section 8. Repetitive Petitions for Amendment----- 5 Section 9. Approval by Attorney General----------- 5 Section 10. Exemption of Utilities--------------- 5 ' Section ll. Building Permits---------------------- 6 Section 12. Withholding of Permits----------------- 6 Section 13. Basis for Appeals---------------------- 7 Section 14. Board of Appeals---------------------- 7 Section 15. Powers of Board of Appeals------------- 8 Section 16. Procedure for Appeals---------------- 8 Section 17. Public Hearing------------------------- 8 1 Section 18. Rules of Board of Appeals-------------- 9 Section 19. Authority of Board of Appeals---------- 9 Section 20. Repetitive Petitions to Board of Appeals-10 ' Section 21. Appeal to Superior Court--------------- 10 Section 22. Enforcement by Superior Court---------- 11 ' New Provisions of Chapter 40A Flood Plain 12 Building Peruit at T:Lie of Adoption or Amendment--- 12 Building Permit from Selectmen---------------------- 13 Notice of Hearing to Planning Board------------------ 13 Notice of Decision of Board of Appeals to Planning 1 Board and others----------------------------------- 14 Granting of Exceptions by City Council or Selectmen- 14 ' Procedure for Adoption of Zoning By-law by Towns---------- 15 Procedure for Amendment of Zoning By-law by Towns--------- 16 Procedure for Submission of Zoning By-law or Amendment to Attorney General-- ----------------------------------- 17 CHAPTER 368 OF THE ACTS OF 1954 AN ACT TO AMEND THE_ZONING ENABLING LAW SECTION 1. Chapter 40 of the General Laws is hereby amended by strik- ing out sections 25 to 30-B, inclusive. SECTION 2. The General Laws are hereby amended by inserting after chapter 40 the following new chapter:- CHAPTER 40A ZONING REGULATIONS (published on following pages and including amend- went by chapter 551 of the Acts of 19542 see below) SECTION 3. The provisions of chapter forty A of the General Laws, so far as they are the same as those of sections twenty-five to thirty B, inclusive, of chapter forty of the General Laws, shall be construed as continuations of said provisions, and the enactment of this statute shall not affect the validity of any action lawfully taken under said ' provisions prior to the effective date of this act. Approved May 1. 1954 ' Effective August 1, 1954 ' CHAPTER 551 OF THE. ACTS_OF 1 / ' AN...ACT PROVIDING_FOR THE DESIGNATION_QEASSOCIATE t�"tMRS OF BOA�HDS OF APPEAL UNDER_TF ZONING ENABLING ACT t SECTION 1. Section 14 of Chapter 40A of the General Laws, as appearing in Section 2 of chapter 368 of the Acts of 1954, is hereby amended by striking out the last sentence and inserting in place thereof the follow- ing sentence:- Such ordinances or by-laws nay provide for the appoint- ment in like manner of associate members of the board of appeals; and in case of a vacancy, inability to act, or interest on the part of a member of said board, his place nay be taken by an associate member designated by the chairman. SECTION 2. This act shall take effect on the sane date on which chapter three hundred and sixty-eight of the acts of nineteen hundred and fifty- four takes effect. Approved June 3, 1954 Effective August 1, 1954 -1- CHAPTER 40A GENERAL WIS ' SECTIONS 1 to 22 INCLUSIVE ZONING ANGULATIONS ' CITATION Section 1. This chapter shall be known and ' may be cited as "The Zoning Enabling Act". PURPOSE OF ZONING 8ect4g ,,,y,. For the purpose of promoting the health, safety, convenience, morals or wet- ' fare of its inhabitants, any city, except Boston, and any town, may by a zoning ordin- anee or by-law regulate and restrict the ' height, number of stories, and size of build- ings and structures, the size and width of lots, the percentage of lot that may be ocou- pied, the size of yards, courts and other open ' spaces, the density of population, and the lo- cation and use of buildings, structures and land for trade, industry, agriculture, resi- dence or other purposes; provided, however, Limitation of chureb that no ordinance or by-law which prohibits or uses invalid limits the use of land for any church or other religious purpose or for any religious, sectarian or denominational educational pur- pose shall be valid. For any or all of such purposes a zoning ordin- Zoning districts ance or by-law may divide the municipality in- to districts of such number, shape and area as may be deemed best suited to carry out the purposes of this chapter, and within such dis- tricts it may regulate and restrict the erect- ion, constructions, reconstruction, alteration ' or use of buildings, and structures, or use of land, and may prohibit noxious trades within the municipality or any specified part thereof. ' All such regulations and restrictions shall be Uniformity within uniform for each class or kind of buildings, district structures or lard., and for each class or kind of use, throughout the district, but the regu- lations and restrictions in one district may differ from those in other districts. Due m- ' Bard shall be paid to the characteristics of the different parts of the city or town, and the zoning regulations in any city or town shall be the same for zones, districts or streets ' having substantially the same character. A Flood plain zoning zoning ordinance or by-law may provide that lands deemed subject to seasonal or periodic flooding shall not be used for residence or other purposes in such a manner as to endanger the health or safety of the occupants thereof. 1 -2- PURPOSES OF REGULATIONS Sections. Zoning regulations and restrict- ions shall be designed among other purposes to lessen congestion in the streets; to conserve health; to secure safety from fire, panic and other dangers; to provide adequate light and ' air; to prevent over-crowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transpor- tation, water, seweraga, schools, parks and other public requirements; to conserve the value of land and buildings; to encourage the most appropriate use of land throughout the city or town; and to preserve and increase its amenities. EXCEPTION$ Sectio 1. A zoning ordinance or by-law may provide that exceptions may be allowed to the regulations and restrictions contained therein which shall be applicable to all of the dis- tricts of a particular class and of a character set forth in such ordinance or by-law. Such exceptions shall be in harmony with the gen- eral purpose and intent of the ordinance or by-law and may be subject to general or specific rules therein contained. The board By Board of Appeals or of appeals established under section fourteen City Council or Selectmen of such city or town, or the city council of if so provided such city or the selectmen of such town, as such ordinance or by-law may provide, may, in ' appropriate cases and subject to appropriate conditions and safeguards, grant to an appli- cant a special perait to make use of his land ' or to erect and maintain buildings or other structures thereon in accordance with such an exception. Before granting such a spacial per- Public hearing mit the board of appeals, or the city council or the sglectmen if the ordinance or by-law so provides, shall hold a public hearing thereon, notice of which shall be given in accordance with section seventeen. NON-CONFOWING USES Sectio. Except as provided in section (exemption of existing eleven,a zoning ordinance or by-law or any a- uses) mondmant thereof shall not apply to existing buildings or structures nor to the existing use of any building or structure,or of land to the extent to which it is used at the time of adopt- ion of the ordinance or by-law,but it shall Change of use and alter- apply to any change of use thereof and to any ation of building alteration of a building or structure when the sane would amount to reconstruction, extension or structural change, and to ani► alteration of a building or structure to provide for its use for a purpose or in a manner substantially different from the use to vhioh it was put be- fore alteration, or for its use for the same Non-use of non-ecaform- purpose to a substantially greater extent. ing structures Such an ordinance or by-law ' -3- may regulate non-use of non-conforming build ings and structures so as not to unduly pro- long the life of non-conforming uses; provided, Agricultural exemption that no such ordinance or by-law shall so regu- late the nor.-use of Pon-conforming land used for agriculture, horticulture or floriculture where such non-use has existed for less than five years. ' ADOPTION AND AmM ENT Section 6. Zoning ordinances or by-laws may be adopted and from time to time be changed by amendment, addition or repeal, but only in the manner hereinafter provided. No zoning ordin- ance or by-law originally establishing the boundaries of the district or the regulations ' and restrictions to be enforced therein, and no such ordinance or by-law changing the same as aforesaid, shall be adopted until after the planning board, if any, or, in a town having no such board, the board of selectaen, has held a Public hearing and re- public hearing thereon after due notice given ' port by Planning Board and has submitted a final report with recommen- dations to the city council or town meeting, or until twenty days shall have elapsed after such hearing without the submission of such report; ' provided, that, in case of a proposed ordinance or by-law originally establishing the boundaries of the districts or the regulations and re- strictions to be enforced therein, it shall be sufficient if a public hearing is held and a final report with recommendations is submitted ' by a zoning board appointed for the purpose by the city council or selectmen or twenty days elapse after such hearing without such report being submitted. No such ordinance as proposed to be originally established or changed as Public hearing and re- aforesaid shall be adopted until after the city port by City Council council or a committee designated or appointed ' for the purpose by it has held a public hearing thereon, at which all interested persons shall be given an opportunity to be heard. At least ' twenty days' notice of the time and place of such hearing before the city council or committee thereof shall be published in an official publication, or a newspaper of general circulation, in the city or town. After such notice, hearings and report, or lapse of time without report, a city council or town meeting may adopt, reject, or amend and adopt any such proposed ordinance or by-law. TWO-TRIMS VOTE RE- Section 7. No change of any zoning ordin- QUIBED FOR AMENDMENT ance or by-law shall be adopted except by a two-thirds vote of all the members of the city council where there is a commission form of government or a single branch, or of each branch where there are two branches, or by a -4- two-thirds vote of a town ;hooting; provided., that in case there is filed with the city clerk prior to the close of the first hearing before Protest in cities the city council or co;a:aittee thereof a written protest against such change, stating the ' reasons, duly signed by the owners of twenty per cent or more of the area of the land pro- posed to be included in such change, or of the area of the land immediately adjacent, extend- ing three hundred feet therefrom, or of the area of other land within two hundred feet of the land proposed to be included in such charge, no such change of any such ordinance shall be Unanimous vote after adopted except by a unanimous vote of all the protest in cities members of the city council, whatever its form, if it consists of less than nine members or, if it consists of nine or more members, by a three-fourths vote of all the members there- of where there is a comt:iission form of govern- ment or a single branch, or of each branch where there are two branches. ' REPETITIVE PETITIONS Sect on 8. After acceptance of this TO COUNCIL OR TOJN HEET- section or corresponding provisions of earlier ING laws as provided in section four of chapter (contingent upon accept- four, no proposed ordinance or by-law waking ance) a change in any existing zoning ordinance or by-law, which has been unfavorably acted upon ' by a city council or town meeting, shall be considered on its Lorits by the city council or town neeting within two years after the date of such unfavorable action unless the adoption ' of such proposed ordinance or by-law is recommended in the final report of the plann- ing board or selectmen required by section six. ' APPROVAL BY ATTORNEY Seetioa_9. When zoning by-laws or any GENERAL changes therein are submitted to the attorney- general for approval as required by section thirty-two of chapter forty, there shall also be furnished to him a statement explaining clearly the by-laws or changes proposed,to- gather with maps or plans, when necessary. EM4PTION OF UTILITIES Section 10. A building, structure or land used or to be used by a public service corpora- tion may be exe:aptod frora the operation of a zoning ordinance or by-law if, upon petition of the corporation, the department of public ' utilities shall, after public notice and hearing, dee dQ iat the present or proposed situation of the build- ing structure or land in question is reason- ably necessary for the convenience or welfare of the public. I ' -5- BUILDING PERMITS Section. . In a city, no zoning ordinance or amendment thereof shall affect any permit ' Effect on building per- issued or any building or structure lawfully nits by adoption or begun before notice of hearing before the ' amendment of ordinance planning board or the zoning board, as the or by-law: case may be, or, if there is neither, before the city council, has first been given; and, in a town, no zoning by-law or amendment there- of shall affect any permit issued or any building or structure lawfully begun before If issued before notice notice of hearing before the planning board Of hearing or publication or the zoning board, as the case may be, or, of warrant if there is neither, before the selectmen, has first beext given or before the issuance ' of the warrant for the town meeting at which such by-law or amendment is adopted, which- ever comes first; provided, that construction work under such a permit is commenced within ' six months after its issue, and the work, whether under such permit or otherwise law- fully begun, proceeds in good faith contin- t If issued A= notice uously to completion so far as is reasonably of hearing or publication practicable under the circumstances. The of warrant issuance of a permit or the beginning of work ' upon a building or structure, or a change of use, after such notice has been given or such warrant has been issued, shall not justify the ' violation of a zoning ordinance or by-law or an amendment thereto subsequently adopted as the outcome of such hearing and in substantial accord with such notice or warrant; provided, the subsequent steps required for the adop- tion of such ordinance or by-law or amendment thereto are taken in their usual sequentse ' without unnecessary or unreasonable delay. WITHHOLDING OF PERMITS BY Section nal. The inspector of buildings in ENFORCING AUTHORITY a city or town, or the officer or board hav- ing supervision of the construction of build- ings or the power of enforcing the municipal building laws, or, if in any town there is no ' such officer or board, the selectmen shall withhold a permit for the construction or al- teration of any building or structure if the building or structure as constructed or al- tered would be in violation of any zoning ordinance or by-law or amendment thereof; and state, county and municipal officers shall re- fuse any permit or license for a new use of a building, structure or land which use would be in violation of any zoning ordinance or by- Permits by selectmen in law or amendment thereof. Any town, in which absence of building laws a zoning by-law is in force but in which there are no municipal building laws, may provide ' by by-law that no building shall be erected, externally altered or changed in use in such town without a permit from the selectmen; and the selectmen shall withhold such permit ' unless such erection, alteration or proposed use is in conformity with such zoning by-law. BASIS FOR APPEALS Section 13. An appeal to the board of ' appeals established under section fourteen may be taken by any person aggrieved by reason of his inability to obtain a permit from any ad- ministmtiva official under the provisions of this crus . A zoning ordinance or by-law may provide that, in addition to appeals provided for under the forogoing provisions of this section, appeals may be taken to the board of appeals by any officer or board of the city,or town, or by any person aggrieved by any order or decision of the inspector of buildings or other admin- istrative official in violation of any pro- vision of this chapter, or any ordinance or by- law adopted thereunder, and may prescribe a ' reasonable time within which appeals under this section may be taken. BOARD OF APPEALS Sectign ! . Every zoning ordinance or by- ' law shall provide for a board of appeals, which may be the existing board of appeals under the local building or planning ordinan-ces or by-laws. Pending provision for a board of appeals, for a period of not more Council or Selectmen as than three months after the adoption of such ' interim board ordinance or by-law, the city council or selectmen shall act as a board of appeals. Any new board of appeals established hereunder shall consist of at least three members, who ' Membership of board shall be appointed by the mayor, subject to the confirmation of the city council, or by the selectmen, for terms of such length and so arranged that the term of one appointee will Terms of office expire each year; and said board sWl elect annually a chairman from its own number. Any board so established may also act as the board of appeals under the local building or plann- ing ordinances or by-laws. Removal of members Any member may be removed for cause by the appointing authority upon written charges and after a public hearing. Vacancies shall be ' filled for unexpired terms in the same manner as in the case of original appointments. Such Associate members ordinances or by-laws may provide for the ' appointment in like manner of associate mem- bers of the board of appeals; and in case of a vacancy, inability to act, or interest on the part of a member of said board, his place ' may taken by an associate member designated by the chairman. -7- POUdERS OF BOARD OF Section . A board of appeals shall have ' APPEALS the following powers: 1. To hear and decide appeals taken as Appeals provided in section thirteen or in an ordinance or by-law authorized under said section. Exceptions 2. To hear and decide applications for special permits for exceptions as provided in section four upon which such board is required to pass. Variances 3. To maize upon appeal, or upon peti- tion in cases where a particular use is sought ' for which no permit is required, with respect to a particular parcel of land or to an exist- ing building thereon a variance from the terms ' of the applicable zoning ordinance or by-law where, owing to conditions especially affect- ing such parcel or such building but not affect- ing generally the zoning district in which it ' is loeated, a literal enforcement of the pro- visions of the ordinance or by-law would in- volve substantial hardship to the appellant, ' and where desirable relief may be granted with- out substantial detriment to the public good and without nullifying or substantially dero- gating from the intent or purpose of such ordinance or by-law, but not otherwise. Limitation of variance In exercising the powers under paragraph three above, the board may impose limitations ' both of time and of user, and a continuation of the use permitted may be conditioned upon compliance with regulations to be made and ' amended from time to time thereafter. PROCEDURE FOR APPEALS Section 16. Any appeal under section fif- teen shall be taken within the time prescrib- ed by ordinance or by-law in case the time for appeal is so prescribed, otherwise within a reasonable time provided by rule of the board of appeals, by filing with the officer or board from whose order cr decision the appeal is taken and with the board of appeals a notice of appeal specifying the grounds thereof; provided, that, in any town whose by- laws so provide, such notice of appeal shall be filed with the town clerk, who shall forthwith 1 transmit copies thereof to such officer or board and to the members of the board of appeals. Such officer_ or board shall forthwith ' transmit to the board of appeals all documents and papers constituting the record of the case in which the appeal was taken. PUBLIC HEARING Section 17. The board of appeals shall fix a reasonable time for the hearing of any . appeal or other matter referred to it or any Public notice petition for a variance, and give public notice thereof in an official publication, or a news- -6- paper of general circulation, in the city or town, and also send notice by mail, postage ' Notice to property prepaid, to the petitioner and to the owners owners affected of all property deemed by the board to be affected thereby, as they appear on the most ' recant local tax list, and to the planning Notice to Planning Board board of such city or town. At the hearing any party whether entitled to notice thereof ' Agent or attorney or not may appear in person or by agent or by attorney. RULES SgW9XL". The board of appeals of each ' city or town shall adopt rules, not inconsist- ent with the provisions of the zoning ordinana3 or by-law of such city or town, for conducting ' its business and otherwise carrying out the Meetings purposes of this chapter. Meetings of the board shall be held at the call of the chair- man, and also when called in such other manner as the board shall determine in its rules.Such chairman) or in his absence the acting chair- Oaths and witnesses man, nay administer oaths, summon witnesses and call for the production of papers. All hearings of the board shall be open to the Decision public. The decision of the board shall be ' made within a reasonable time. The board shall Record of proceedings cause to be made a detailed record of its proceedings, showing the vote of each member ' upon each question, or, if absent or failing to vote, indicating such fact, and setting forth clearly the reason or reasons for its decisions, and of its other official actions, copies of all of which shall be immediately filed in the office of the city or town clerk Notice of decisions and shall be a public record, and notice of decisions shall be mailed forthwith to parties ' in interest as designated in section seventeen, to the planning board, and to every person present at the hearing who requests that no- tice be sent to him and states the address to which such notice is to be sent. ' AUTHORITY OF BOARD Section 19. In exercising the powers grant- ed by section fifteen, a board of appeals may, in conformity with the provisions of this chapter, reverse or affirm in whole or in part, or may modify, any order or decision, and may make such order or decision as ought to be ' made, and to that and shall have all the powers of the officer from whom the appeal is taken and may issue or direct the issue of a permit. Unanimous vote by board The concurring vote of all the members of a a board of appeals shall be necessary to re- verse any order or decision of any administra- tive official under this chapter, or to de- cide in favor of the applicant on any matter upon which it is required to pass under any 1 zoning ordinance or by-law, or to effect any variance in the application of any such ordin- ance or by-law. REPETITIVE PETITIONS Section 20. After acceptance of this TO BOARD OF APPEALS section or corresponding provisions of earlier (contingent upon laws as provided in section four of chapter ' acceptance) four, no appeal or petition under paragraph three of section fifteen for a variance from the terms of such an ordinance or by-law with respect to a particular parcel of land or the ' building thereon, and no application under paragraph two of section fifteen for a special exception to the terms of any such ordinance or by-law, which has been unfavorably acted upon by the board of appeals shall be consid- ered on its merits by said board within two ' years after the date of such unfavorable action except with the consent of all of the members of the planning board, or of the board ' of selectmen in a town having no planning board. FURTHER APPEAL TO Section 21. Any person aggrieved by a de- SUPERIOR COURT cision of a board of appeals, whether or not previously a party to the proceeding, or any municipal officer or board, may appeal to the ' superior court sitting in equity for the county in which the land concerned is situated; provided, that such appeal is filed in said ' 15-day appeal period court within fifteen days after such decision is recorded. The court shall hear all perti- nent evidence and determine the facts, and, ' upon the facts as so determined, annul such decision if found to exceed the authority of such board, or make such other decree as jus- tice and equity may require. The foregoing remedy shall be exclusive, but the parties shall have all rights of appeal and exception as in other equity cases. Costs against board Costs shall not be allowed against the board unless it shall appear to the court that the board in making the decision appealed from acted with gross negligence, in bad faith or with malice. Costs against appellant Costs shall not be allowed against the pAr%r appealing from the decision of the board un- ' lass it shall appear to the court that said appellant or appellants acted in bad faith br with 4al. ce in making the appeal to the ' Precedence of action court. All issues in aWproeeeding under this section shall have precedence over all other civil actions and proceedings. ENFORCEMENT BY SUPERIOR Section 22. The superior court shall have COURT jurisdiction in equity to enforce the pro- visions of this chapter, and any ordinances or ' by-laws adopted thereunder, arra may restrain by injunction violations thereof. Validity of ordinance or If the attorney general questions the by-law determined by validity of wV ordinance or by-law adopted by Superior Court a city or towns under this chapter, he shall ' bring an information in his own name as such officer in the superior court sitting in equi- ty for the county in which such city or town is situated for a declaratory decree to de- termine the validity of such ordinance or by-law. 1 1 ^iii• ' NEI,1 PROVISIONS OF CHAPTER 40A Note: The following couments have been taken largely ' from the "Summary of the Proposed Redraft of the Zon- ing Enabling Act" by the Committee on Legislation of the Massaehusotts .Federation of Planning Boards, Philip Nichols, Chairman. This was published as a part of ' House Bill 2249 of 1953, which was a "Report of the Special Commission on Planning and Zoning" dated December 1952. FLOOD PLAIN ZONING ' Section 2 of Chapter 40A provides that a zoning ordinance or by-law may pro- hibit the use for residence or other purposes of lands subject to seasonal or periodic flooding in such a manner as to endanger the health or safety of the ' occupants. This change was suggested by the State Planning Board (now the Planning Division of the Department of Coumerce) because a number of cases had cone to the attention of that Board in which the lack of such a provision had ' resulted in loss or disaster. It is thought unsoeraly for a city or town to include land in a residence district under its zoning ordinance or by-law, and thus by implication give assurance that it is suitable for residence purposes, when the city or town officials know (and prospective purchasers do not know) ' that such land is subject to seasonal or periodic flooding, either from freshets from high tides accompanied by violent gales, or from surface water during hear rain, in such a manner as to endanger the health and safety of the occupants. ' BUILDING PERMIT AT TIME OF ADOPTION OR AMENDMENT OF ORDINANCE ORBY-LAW Section 11 0£ Chapter 40A relates to the difficult problem of adjusting the rights of the parties when a building is erected at or about the time of the adoption of a zoning restriction which will make the proposed use of such ' building inconsistent with the terms of the ordinance or by-law. It clarifies the status of permits issued both before and after notice of the public hearing whereas the old law mado no reference to the status of a parriit issued after the notice of hearing. Since 1933 the statute has provided that no zoning ordinance or by-law should affect a permit lawfully issued before the first legal stops to adopt or amend the ordinance or by-law had boon taken, provided that construction under such a permit was begun within six months after its issue. &porience showed, however, that the purpose of this provision could be and frequently was evaded by making a pretense to start work under the permit and then waiting for years to complato the building, which when completed would constitute a fictitious but legally protected "non-conforming use". To prevent such evasion the statute was a,:iended, by adding "if the work----.: proceedsin good faith continuously to completion so far as it reasonably 1 practicable under the circumstances." 12- 1 The status of a permit issued after the first legal steps to adopt or ' amend is now defined by the addition of the following sentence: "The issuance of a per,irit or the beginning of work upon a building or structure, or a change of use, after such notice has been given or such warrant ' has been issued, shall not justify the violation of a zoning ordinance or by-law or an siaenduent thereto subsequently adopted as the outcome of such hearing and in substantial accord with such notice or warrant; provided, the subsequent stops required for the adoption of such ordinance ' or by-law or aaondmant thereto are taken in their usual sequence without unnecessary or unreasonable delay." ' BUILDING PERMIT FR% SELECTMEN Section 12 of Chapter 40A provides that "Any town, in which a zoning by-law is in force but in which there are no municipal building laws, may provide by by-law that no building shall be erected, externally altered or changed in use in such tow without a permit from the select- men; and the selectmen shall withhold such permit unless such erection, ' alteration or proposed use is in conformity with such zoning by-law." The most effective and convenient ra4thed of nipping violations of a zon- ing ordinance or by-law in advance is for the building inspector or corresponding officer to refuse an applicant a building pormit if his proposed building will violate the zoning regulations. When the zoning ' law was first enacted it was hardly expected that zoning by-laws would be adoptod in towns which had no building by-laws and which allowed any parson to erect any type of building anywhere in the town without a par- nit. Such has, however, proved to be the case, and in such towns not ' only has it proved difficult to enforce the zoning by-law, but hardship cases have arisen in which an owner has orected a building in good faith without the slightest idea that he has violated the zoning by-law. Sono ' of such towns have accordingly adopted a provision in their zoning by-laws, to the effect that no building shall be erected in the town without a permit from the seloctiaen, and that the selactmen shall refuse a permit if the proposed building would not be in conformity with the zoning by-law. Such provisions were not quostionod, but Section 12 validates them and provides a method of enforcement of zoning for towns having no building laws. 1 NOTICE OF HEARING TO LLANNING BOARD Section 17 of Chapter 40A provides that notice of a hearing on a variance or other appeal before the board of appeals shall be given to the planning board. The planning board is certainly an interested and well-informed party and is given authority, as are all municipal officers or boards, to appeal from a decision of the board of appeals. Cases arose in which a hearing on a petition for a variance was held by a ' board of appeals, of which hearing the local planning board had no knowledge. The planning board was consequently not represented at the hearing, and, therefore, the board of appeals did not have the benefit of pertinent in- formation which the planning board would have given if it had been present. The granting of variances is at best a difficult and delicate ;natter, and the public should be protected frotu unwise variances by making sure that the board of appeals has all available information in its hands before it takes action. -1 - 1 I � NOTICE OF DECISION OF BOARD OF APPEALS TO PLANNING BOAPD AND OTHERS Section 18 of Chapter 40A provides that in addition to other parties- in-interest, the planning board and every person present at a hearing ' before the board of appeals who so requests, shall be sent a notice of the decision of the board. ' Such decision must, as it did under the old law, be filed and recorded in the office of the city or town clerk. Hitherto, the planning board or other interested citizens who attended the hearings and wished to exercise their statutory right of appeal if the decision should aggrieve them, had no weans of knowing when the decision was rendered or whether it was favorable or adverse, except by calling at the office of the city or town clerk at frequent intervals after the hearing, and inquir- ing, or searching the records to find whether a decision had been rendered. ' Section lg remedies this burdensome and somewhat ridiculous situation at only slight inconvenience to the secretary of the board of appeals. ' GRANTING OF EXCEPTIONS BY CITY COUNCIL OR SELECTMEN Section 4 of Chapter 40A authorizes not only the Board of Appeals but also the city council and the selectmen "as such ordinance or by-law ' may provide" to grant an applicant a special permit in accordance with such exceptions as may be provided for in the ordinance or by-law. In the older law the power to allow "exceptions" or "special permits" was granted only to a board of appeals; but many ordinances and by-laws adopted after 1933 gave that power to the city council or the selectmen. ' The procedure was up-hold by the courts and it, therefore, seemed wise to state in the statute itself that "exceptions" or "special permits" may be granted by the city council or selectmen if so provided for in the ordinance or by-law and after public hearing. -14- PROCEDURAL STEPS FOR ADOPTION of a ZONING BY-LAW by a TOWN ' let Step: Public hearing, after due notice, by one of the following: a. Planning Board b. Board of Selectmen, if no Planning Board e. Zoning Board appointed by Selectmen ' The Attorney General's office advises that the best practice in giving "due notice" is to publish the complete text of the proposed by-law,as well as the date, time and place of the hearing. The proposed map may or nay not be published, but should be referred to in the notice and ' should be displayed at the hearing. The time of publication is depend- ent upon its fora; publication by advertisement in a newspaper of local circulation should as a matter of practice be at least fifteen days or ' .more prior to the date of the hearing; publication in a pamphlet sent by mail or distributed to each inhabitant of the town should as a matter of practice be at least seven days prior to the date of the hearing. ' (It is only in the case of cities that twenty days$ notice of the public hearing is required. ) 2nd Step: Submission of final report with recommendations to the town meeting by ' the Planning Board,Board of Selectmen or Zoning Board, following the public hearing. Although the statute does not so specify, this report is usually in writing. In any case, such a report in writing is required to be sub- mitted to the Attorney General under the provisions of, G.i. Ch. 40A, Sec. 9, which reads "When zoning by-laws.. .are submitted to the Attorney General for approval...there shall also be furnished to him a statement explaining clearly the by-laws...proposed, together with maps or plans". If, after the hearing, the Board recommends substantial and material ' changes, another hearing is advisable with due notice. In the event that the Board fails to submit a report with recommendations, at least twenty days must elapse between the hearing and any action by a town ' meeting. 3rd Stop: Town meeting adopts, amends and adopts, or rejects the proposed ' original by-law by majority vote. 4th Step: Adopted by-law submitted to Attorney General for approval. ' An instruction sheet to Town Clerks, prepared by the Department of the Attorney General concerning such submission is submitted on page 17. This instruction sheet should be carefully read in advance of the public hearing and town meeting in order that the information and record of proceedings required for later filing shall be available. 5th Step: Approved by-law published, by one of the following methods: a. Posting in at least five public places, and if the town is divided into precincts, in each precinct. b. Printing at least three time in one or more newspapers, if any, of the town, otherwise of the county. c. Delivering a copy of the by-law at every occupied dwelling or apartment, and affidavits of the persons delivering the ' said copies shall be filed with the Town Clerk. NOTE: A zoning by-law is not legally in effect until each step has been completed. -15- ' PROCEDURAL STEPS FOR AMENDMENT of a ZONING BY-Lad by a TUJN ' 1st Step: Public hearing, after due notice, one of the following* by g a. Planning Board b. Board of Seloctmon, if no Planning Board The Attorney General's office advises that the beat practice in giving ' "due notice" is to publish the eo*oto t=t of the proposed amendment, as well as the date, time and place of the hearing. If the proposed amendment involves changes in the zoning map, a nap showing the changes may or may not be published, but should be referred to in the notice and should be displayed at the hearing, and the areas to be changed should be accurately described iniho notice. The time of publication is dependent ' upon its fora; publication by advertisement in a newspaper of local cir- culation should as a matter of practice be at least fifteen days or more prior to the date of the hearing; publication in a pamphlet sent by mail or distributed to each inhabitant of the town should as a natter of ' practice be at least seven days prior to the date of the hearing. (It is only in the case of cities that twenty days' notice of the public hearing is required.) ' 2nd Step: Submission of final report with reoowvndations to the town meeting by the Planning Board or Board of Selectmen, fallowing the public hearing. Although th6 statute does not so specify, this report is usually in writ- ing. In any case, such a report in writing is required to be submitted °to the Attorney General under the provisions of G. L. Ch. 40A, Seo. 9, ' which reads "When zoning by-laws or any changes therein are submitted to the Attorney General for approval, there shall also be furnished to hies a statement explaining clearly the by-laws or changes proposed, together 1 with maps or plans." If, after the hoaring, the Board recommends sub- stantial and material changes from the amendment as originally proposed and heard, another hearing is advisable with due notice. In the event ' that the Board fails to submit a report with recommendations, at least twenty days must elapse between the hearing and any action by a town meeting. 3rd Step: Town meeting adopts or amends and adepts by a two-thirds vote or rejects the proposed amendment. 4th Step: Adopted amendment submitted to Attorney General for approval.. An instruction sheet to Town Clerks prepared by the Department of the Attorney General concerning such submission is submitted on page 17.This ' instruction sheet should be carefully read in advance of the public hear- ing and town meeting in order that the information and record of proceed- ings required for later filing shall be' available. 5th Step: Approved amendment published, by 2ng. . ' the following methods: a. Posting in at least fivM public places and, if the town ' is divided into precincts, in each precinct. b. Printing at least three tines in one or more newspapers, if any, of the town, otherwise of the county. c. Delivering a copy of the by-law at every .occupied dwelling or apartment, and affidavits of the persons delivering the said copies shall be filed with the Town Clork NOTE: A zoning amendment is not legally in effect until each stop has been completed. ' 16- PROCEDURE FOR SUBMISSION OF ' BY-LAsdS AND AMENDMENTS to THE ATTORNEY GENERAL (as prepared by that office) with special reference to zoning by-laws) ' 1. All papers must be attested or certified by the Town Clerk, under seal of the town. 2. Only the by-laws themselves and any zoning naps, to be approved by ' the Attorney General, must be in duplicate. 3. State the date and the manner by which notice of the warrant was given to the citizens, and whether the notice complied with the ' by-law as to said notice. 4. Submit a copy of the warrant. 5. Report the number of votes in the affirmative and the inmber in the negative. 6. State whether or not there was a quorum at the town meeting at which action was taken. 7. In case of a zoning by-law, subs- t maps in file size (not larger than about 24" x 36"), with proper legend showing the areas of ' existing zoning districts. The changes to be made by amendment should be shown in color and be labelled by article number. The map should be attested, under seal, as being the zoning map of the Town. ' 8. In case of a zoning by-law, furnish a copy of the notice of the public hearing and the date of public hearing by the Planning Board., ' or, in the absence of a Planning Board, by the Board or Committee authorized by chapter 40A, section 6. ' 9. If a report of the Planning Board was made, this report should give detailed reasons upon which recon-endations are based. It must show that no material amendments were made at the hearing of the pro- posed by-laws as submitted in the notice to the citizens; it must ' be signed by the Planning Board; the clerk must certify that they are members of such Board. An informal supplementary report may be furnished showing reasons for zoning changes. ' 10. Bylaws must be published after approval by the Attorney General. ' 11. Any by-law should be submitted to the Attorney General promptly after vote of the town, and in any case, not later than one year after such vote. Publication approved by George J. Cronin, State Purchasing Agent-#21 17- EUGENE M. QUINLAN LEGAL PUBLICATIONS :a 294 WASHINGTON STREET BOSTON S. MASS, ZONING BULLETIN The Zoning Bulletin brings to you in digested form the Supreme Court Decisions of all States in the country. These cases are concerned with Non-Conforming Uses, Variances, Exceptions, Accessory Uses In- terpretations of Ordinances and the final test of re-zoning ideas as they are tested by the Courts. Rulings on Zoning are conclusions of Law. Reading these cases shows the practical application of facts to the Law. In following these p. decisions in your own problems, your opinions will always be based on a sound judgment, The Zoning Bulletin is offered at the subscription price of $10. 00 per year, ten issues per year. This allows for Court vacations. However if there are decisions available, there will be twelve issues per year. For those Municipalities which want extra copies, five copies of each issue may be had for the Subscription Price of $25.00 per year. Yours very truly ublisher ti OF NORTH VMVER TD, C �, BOAT'D OF. APPEALS �' NOTICE Otice is hereby given January 15,Board Appeals will give a hearing at the Town Sliding, North Andover, Monday evening, January 28, 1957, at 8:30 o'clock, to all O LBnio interrequesting to a varpation Cal f faniel the ZOnipg Ordinance So aS to permit the ereC- tignrof s.restaurant onder Sectlon 4.44 of the Zoning By-Laws. on the premises. Ip- Gated at Osgood Street, North Andover. BY Order of the Board of Appeals. FiNCK, Chairman. .TOWN OF NC 8 AN.,0V�" �y�4fi ° '- �eaa '• Fig'" BOARD OF APPRALS SNOTICE January 15, 1957 of AoDtipceeais will glue a venhesthat tthe Town BuIldtng. North Andover, Monday evening January 28, 1957, at 9:00 o'clock, to all Vpparties interested in the appeal of Joseph Lteciardello requesting a variation of the ZOning Ordinance so as to ppeerntit the erection of a single family dwelltn9 on the premises, located at lot 104 Harwood. Street, North Andover, BY Order of the Board of Appeals. RALPH E. FINCK, Chairman, Oversized Maps on file with the Town i